Attorney General v Parsons
| Jurisdiction | England & Wales |
| Judge | Earl Jowitt,Lord Porter,Lord Morton of Henryton,Lord MacDermott,Lord Cohen |
| Judgment Date | 19 December 1955 |
| Judgment citation (vLex) | [1955] UKHL J1219-1 |
| Date | 19 December 1955 |
| Court | House of Lords |
[1955] UKHL J1219-1
House of Lords
Earl Jowitt
Lord Porter
Lord Morton of Henryton
Lord MacDermott
Lord Cohen
Upon Report from the Appellate Committee, to whom was referred the Cause Attorney-General against Parsons and others, that the Committee had heard Counsel, as well on Monday the 14th, as on Wednesday the 16th, Thursday the 17th and Monday the 21st days of November last, upon the Petition and Appeal of Her Majesty's Attorney-General, of the Royal Courts of Justice, Strand, London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 10th of May 1955, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Sidney James Parsons, Harry Tinley, Leonard Graham Parsons, Barbara Rait-Kerr, Doris Crawford, The Reverend Austin Lovell Bryan, Roland Victor Bessell, William George Boyce, Arthur Booth Pratt, Richard Nathaniel Dancer Keep, Edward Thomas Deverall, Josiah William Burrows, Aubrey Hoyland, Pamela Thomas, Frank Gordon Poole and The Official Trustee of Charity Lands, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 10th day of May 1955, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and That, subject to the substitution of the word "September" for "October" the Question set forth in paragraph 1 ( a) of the Originating Summons be answered in the Affirmative: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the Respondents other than Arffe Limited the Costs incurred by them in respect of the said Appeal to this House, such Costs to be taxed as between Solicitor and Client, and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This case raises an important issue which depends upon the construction to be placed upon the Mortmain and Charitable Uses Acts of 1888 and 1891.
The relevant facts lie in a small compass. By a lease made in the year 1862 one John Cave demised certain houses in Hammersmith to one John Murray for a term of 99 years from the 29th September, 1858.
The leasehold title to the demised premises was registered at the Land Registry in 1917 as a good leasehold title.
On the 21st February, 1953, the leasehold interest in the premises was transferred to Arffe Limited for valuable consideration: and Arffe Limited became registered as proprietors thereof.
Arffe Limited is a company incorporated in the Republic of Ireland, who hold no licence to hold land in mortmain.
We have to determine the consequence of these transactions.
The proceedings in the case were initiated by the Attorney-General who took out an originating summons asking the Court to determine, amongst other questions, whether the leasehold interest in the demised premises was or ought to be deemed to be vested in Arffe Limited or whether it was vested in Her Majesty.
The Defendants to the summons were the owners of the freehold reversion of the demised premises and Arffe Limited.
It was common ground that Her Majesty had taken no steps to enter into possession of the land in question—it was indeed conceded that so far as was possible Her Majesty had disclaimed any interest in the land.
It was claimed by the Respondents that, on the true construction of the Mortmain and Charitable Uses Acts 1888 and 1891, the transfer of the unexpired residue of the term to Arffe Limited for valuable consideration was an assurance of lands in mortmain, and they claimed further that such an assurance brought about an automatic transfer of the unexpired residue of the term whereby the same became vested in Her Majesty.
The Attorney-General on the other hand contended that even if there had been an assurance of lands in mortmain (which he disputed) Her Majesty would have acquired merely a right to enter upon and take possession of the lands if she desired to do so but was under no obligation if she did not so desire.
The Court of Appeal (Singleton, Denning and Morris, L.JJ.) had decided in a previous case in which a leasehold interest had been transferred to an Irish company without licence to hold lands in mortmain that an automatic forfeiture to Her Majesty had resulted ( Morelle, Limited v. Waterworth, [1955] 1 Q.B. page 1).
Harman J. and the Court of Appeal decided in the present case, and I think rightly decided, that they ought to follow this previous decision.
We have therefore to consider whether the case of Morelle, Limited v. Waterworth was rightly decided.
The consequences of the decision in that case are indeed far-reaching. It would follow that any person holding a short unexpired residue of a leasehold interest would merely have to transfer that interest to a company without licence to hold lands in mortmain to bring about the result that the unexpired residue would be vested in Her Majesty so as to make Her Majesty liable under the covenants contained in the lease.
Such covenants commonly involve an obligation to repair and at the end of a long lease such covenants may and generally will involve onerous burdens.
It is not improbable, on this view of the law, that many leasehold interests involving onerous burdens will be transferred indirectly to Her Majesty by the simple expedient of transferring such interests directly to a company without licence to hold lands in mortmain.
Before considering the construction to be placed upon the Mortmain and Charitable Uses Acts of 1888 and 1891, the law as it existed before the passing of these Acts should be stated.
Under the Statute de Religiosis (7 Edward 1. stat. 2, c. 1) it was provided:
"that no person, religious or other, whatsoever he be, that will buy or sell any lands or tenements, or under the colour of gift or lease, or that will receive by reason of any other title, whatsoever it be, lands or tenements, or by any other craft or engine will presume to appropre to himself, under pain of forfeiture of the same, whereby such lands or tenements may any wise come into mortmain. We have provided also, that if any person religious or other, do presume either by craft or engine to offend against this statute, it shall be lawful to us and other chief lords of the fee immediate to enter into the land so aliened, within a year from the time of the alienation, and to hold it in fee as an inheritance."
That Statute contained provisions preserving the rights of the chief lords or the next chief lord or the lords immediate, as the case might be, to enter upon the land; and in the event of all the lords neglecting to exercise their right, the Statute provided that after the expiration of one year from the act creating the forfeiture, "we shall take such lands and tenements into our hand, and shall infeoff other therein by certain services to be done to us for the defence of our realm".
No doubt the explanation of the passing of this Statute was to protect the rights of the lords, for, as Lord Coke said, "the lands were said to come to dead hands as to the lords, for that by alienation in mortmain they lost wholly their escheats, and in effect their knights-services for the defence of the realm, wards, marriages, reliefs, and the like; and therefore was called a dead hand, for that a dead hand yieldeth no service." (Coke on Littleton: 2.b).
It should be noticed that the Statute de Religiosis did not extend to leaseholds unless the lease either by the length of term granted or by reason of its other incidents could be regarded as an alienation of the fee. The words of the Statute de Religiosis are "under the colour of gift or lease".
It appears that it was considered that a term for 20 or 40 or even 99 years was not within the statute but that a lease for 100 or 200 years was within the statute.
It is to be noticed further that there was no automatic forfeiture—indeed, unless the lord entered within one year after the alienation giving rise to the forfeiture, he lost his right to enter.
The King could not enter upon lands alienated in mortmain save after office found or inquisition—and it was, of course, open to the King to decide whether or not this machinery should be put in motion.
Other statutes were subsequently passed to prevent ingenious attempts to evade the prohibition of alienation which had been enacted by the Statute de Religiosis; and to make it plain that the prohibition of alienation applied to corporations lay as well as to corporations ecclesiastical.
So the law remained in all essentials for many centuries, and the problem which arises in the present case depends upon whether the Acts of 1888 and 1891 must be construed as having made such a fundamental and far reaching alteration in the structure of the pre-existing law as to involve the consequence that an alienation in mortmain which had previously given the mesne lords or the King a right to enter upon the lands if they so desired was henceforth to involve an automatic transfer of the lands to Her Majesty whether she entered into...
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